(concurring specially).
[¶ 37.] It might appear that our decision today begins a new coinage, but in truth, our holding only mints from an old die. This Court abrogated interspousal tort immunity sixty years ago. Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266 (1941); see also Aus v. Carper, 82 S.D. 568, 151 N.W.2d 611 (1967). Here, the husband’s tortious acts fall under the classic delineation of intentional infliction of emotional distress. His conduct was ostensibly designed to cause the very result he sought. His effort to malign his wife’s job integrity at the bank was a maliciously planned offensive. He threatened that before he was done, she would lose her job. She did.
[¶ 38.] Public accusations of child abuse, with repeated examinations of the child by law enforcement, all were intended to harm his wife. He clearly meant to destroy not only whatever remained of the marital relationship but also a mother’s relationship with her child. See Bhama v. Bhama, 169 Mich.App. 73, 425 N.W.2d *385733, 734 (1988). These were not impulsive, isolated acts occurring in a moment of anger or frustration. They were part of a prolonged policy of sabotage, seeking to destroy his wife’s future. As the trial court found, it was “the repeated, excessive nature” of his actions “considered in light of his entire course of conduct during the marriage” that warranted the conclusion that his acts were an extreme outrage. No spouse should have to endure such abuse for the sake of a marriage.3 Thus, although I reject as artificial a distinction between acts occurring before and after commencement of the divorce action, I join in the Court’s recognition of the tort of intentional infliction of emotional distress in the marital context.
[¶ 39.] Many questions about combining these tort actions with divorces await future resolution. What thresholds and sanctions, for instance, must courts impose to prevent meritless claims from congesting and polluting the domestic relations process? Should courts routinely allow these torts to be tried at the same time as the divorce action, or should they be tried separately? What are the preclusive effects of waiting to bring this tort claim until after the divorce? In combining torts with domestic relations, can lawyers use contingent fee agreements in family law matters, or should they have separate fee agreements with the client? These are just a few of the many issues yet to be resolved.
A.
Strict Standards
[¶ 40.] Trial courts must employ the strict legal standards of the Restatement formulation to distinguish intentional infliction of emotional distress from the often sordid, and sadly familiar, deeds of marital misconduct. Certainly, people are entitled to no less dignity in the marriage relationship than they are in other types of human interactions. Yet a marriage calls on physical and emotional resources rarely needed in other less intimate unions. Even a successful and thriving marriage can bring difficulty and disappointment. Because a marriage commitment demands so much and dedicates so much, it is difficult to overvalue the sense of loss the destruction of a marriage can beget. Marital partners unable to overcome their failings may seek dissolution of the relationship, but neither spouse will ordinarily gain monetary damages from the other merely by virtue of these failings. See, e.g., Wiener v. Wiener, 84 A.D.2d 814, 444 N.Y.S.2d 130, 131 (1981).
[¶ 41.] To ensure that these tort claims are not conceived out of petty spite or as leverage for concessions on divorce issues, trial courts, not juries, must sift out un-meritorious suits.4 Whether conduct is so extreme and outrageous as to permit recovery is a question of law. Restatement . (Second) of Torts § 46 cmt h. Only when reasonable minds may differ does the fact finder decide whether, in a particular case, the conduct was sufficiently extreme and outrageous to result in liability. Id. Thus, as with many other legal questions, the Restatement requires the judge to act as a gatekeeper in these cases. Id.
[¶ 42.] The extreme outrage committed by the offending spouse must far exceed *386the bitter but common emotional torments accompanying a deteriorating marriage. Liability will not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id. at cmt. d. The injured spouse must prove not only outrageous conduct but also conduct committed with the very purpose of, or the reckless disregard for, inflicting severe emotional distress on the injured spouse. Establishing both prongs requires more than a showing of mere negligence. Emotional distress includes all highly unpleasant mental reactions, such as fright, humiliation, embarrassment, anger, worry, and nausea. Id. at cmt. j. The law intercedes only when the distress is so severe that no reasonable person should be expected to endure it. Id.
[¶ 43.] These tort actions should not be used as a method to augment divorce awards. Trial courts must scrupulously forestall double recoveries.5 A spouse should not reap tort damages on the same misconduct that generated an alimony award. To avoid a double recovery, a court should factor the alimony awarded in the divorce action when considering damages. On the other hand, in the tort action, an award to one spouse from the other should not add to the marital estate, making the tort award “self-offsetting.” See Barbara H. Young, Interspousal Torts and Divorce: Problems, Policies, Procedures, 27 J. Fam. L. 489, 511 (1989).
[¶ 44.] I share in the dissent’s concern that we may see these tort claims combined routinely with divorce actions. It bears stressing, therefore, that if a court dismisses such a claim because it was frivolously or maliciously brought, then the court must order the offending party to pay part or all of the expenses incurred by the defense, including reasonable attorneys’ fees. SDCL 15-17-51. The language of this statute is mandatory. SDCL 2-14-2.1. Furthermore, courts should sanction attorneys who regularly bring or assist in bringing meritless tort claims in unison with divorce actions, as authorized by SDCL 15 — 6—11(a)—(d).
B.
Joinder and Preclusion
[¶ 45.] In this case, the circuit court joined the divorce and tort actions in the same trial. This is permissible, but not mandatory. Circuit courts have general jurisdiction to hear all civil actions. S.D.Const. art. V § 1. Trial courts should carefully consider in each case whether to hear the tort and the divorce in the same trial. To avoid prejudice and maintain efficiency, courts have the discretion to order separate trials in these proceedings. SDCL 15-6-42(b). In many instances, a joinder of both actions will run contrary to considerations of public policy. Stuart v. Stuart, 143 Wis.2d 347, 421 N.W.2d 505, 508 (1988). When a divorce is brought on irreconcilable differences, joinder of an intentional tort claim defeats the legislative intent in enacting no-fault divorce. Tort actions seek to compensate the injured and sometimes to punish the wrongdoer; divorce actions aim to provide for support, divide marital property, and restore the parties to unmarried status. A tort claim may include facts irrelevant to divorce issues, numerous witnesses, and other parties, such as joint tortfeasors. Combining tort claims with a divorce action may unduly lengthen and complicate a trial and result in delayed child custody and support *387rulings. Id. Obviously, if a jury trial is demanded, the court will have to separate the trials.
[¶ 46.] On the other hand, counsel must be aware that these matters are subject to the principles of preclusion through res judicata and estoppel. Res judicata consists of two preclusion concepts: issue preclusion and claim preclusion. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Issue preclusion forecloses re-litigation of matters tried and decided. Restatement (Second) of Judgments §§ 24, 27. Claim preclusion forecloses litigation of matters never litigated, but that should have been asserted in a prior action. Lee v. Rapid City Area Sch. Dist., 526 N.W.2d 738, 740 (S.D.1995) (citations omitted). Estoppel may also preclude a later tort action. See generally Gesinger v. Gesinger, 531 N.W.2d 17, 21 (S.D.1995).
[¶ 47.] South Dakota is not a pure no-fault divorce state. See SDCL 25-4-2. If a divorce trial implicates matters of fault, such as “extreme cruelty,” then res judica-ta may preclude a later tort claim. Restatement (Second) of Judgments § 24. If the divorce proceeds on a no-fault basis, i.e. irreconcilable differences, then res ju-dicata or estoppel may not bar a later tort suit. See Henriksen v. Cameron, 622 A.2d 1135 (Me.1993). There is a split of authority on this question. In Tevis v. Tevis, the New Jersey Supreme Court barred a tort suit by an ex-spouse because the “single controversy” doctrine and efficiency necessitated that the tort claim be resolved during the divorce suit. 79 N.J. 422, 400 A.2d 1189 (1979). On the other hand, courts in Colorado, Utah, and Arizona came to the opposite conclusion. Simmons v. Simmons, 773 P.2d 602 (Colo.Ct.App.1988); Windauer v. O’Connor, 107 Ariz. 267, 485 P.2d 1157 (1971); Walther v. Walther, 709 P.2d 387 (Utah 1985). An Ohio appeals court, in Koepke v. Koepke, ruled that the concern for judicial economy “does not outweigh the fact that a domestic relations forum is not the proper forum in which to litigate a tort claim.” 52 Ohio App.3d 47, 556 N.E.2d 1198, 1200 (1989).
[¶ 48.] Contingency fees are common in tort actions. But the South Dakota Rules of Professional Conduct prohibit “any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof....” See SDCL 16-18 (Rule 1.5(d)(1)). In Simmons, supra, the court considered the problem of apportioning attorneys’ fees to be an additional policy reason for rejecting joinder. Combining divorce and tort claims presents difficulties in allotting time and fees in client billings. What part of the award results from the divorce claim as distinct from the intentional infliction of emotional distress claim?
[¶ 49.] I concur on the other issues in the majority opinion.
. The tort of intentional infliction of emotional distress "is especially appropriate for a continuing pattern of domestic abuse." Douglas D. Scherer, Tort Remedies for Victims of Domestic Abuse, 43 S.C.L.Rev. 543, 544 (1992).
. One reason why the Florida Supreme Court refused to abrogate interspousal immunity was to prevent spouses from using tort suits to coerce more favorable settlements. Hill v. Hill, 415 So.2d 20, 24 (Fla.1982).
. In Belz v. Belz, both a jury and the divorce court awarded the wife monetary compensation on the husband's fraud in depriving her of an interest in community property. 667 S.W.2d 240 (Tex.Ct.App.1984). The Belz court reversed a part of the divorce award because the wife had already been compensated in the jury award.